No space? German disclosure rules still apply says ECJ

In a discouraging judgment for m-commerce marketers, lack of space for mandatory disclosures was not regarded as a good excuse for abbreviations.

Who: The European Court of Justice ("ECJ") Court of Justice ("ECJ") and Schwarzkopf

Where: Strasbourg

When: Autumn 2001

What happened:

A German cosmetics labelling law required certain warnings to be shown on pack. Schwarzkopf wanted the economy of being able to market the same product, in the same packaging, across the whole of Europe, but there simply wasn’t room to put product warnings in nine different languages on the small pack. So on pack, Schwarzkopf restricted themselves to an abbreviated warning, in nine languages, reading “ Follow instructions for use and heed warnings.” The warnings in full featured in the leaflet inside the pack. The German authorities took action against Schwarzkopf over the absence of the full warning on the outer surface of the packaging. The hair product maker relied on a saving in German legislation for cases where including the full wording for warnings was “impossible for practical reasons.” Could this save the day for them? The issue was passed to the ECJ for consideration. The ECJ judges determined that practical impossibility meant impossible for reasons outside the control of the party concerned. Schwarzkopf’s problem was essentially one of its own making, flowing as it did from the company’s decision to cut costs and distribute the product in the same pack across umpteen different countries. Having decided to do this, it did not lie in their mouths to come back later and complain that owing to lack of pack space, all requisite information could not be provided on the outside of the pack.

Why this matters:

The court quite clearly held that the mere desire to be able to distribute a product in the same packaging across the EU was not in itself sufficient to justify omitting full, obligatory warnings. Hardly a decision in keeping with the single market, and not encouraging either for SMS marketers grappling with having to give sometimes extensive mandatory disclosures.